The People of
the State of New York,
against
Destiny Ramos, Defendant.
|
2014BX018483
For The People:
Robert T. Johnson, District Attorney, Bronx County by Gerard Donahue,
Assistant District Attorney
Armando Montano, J.
The motion by the People for an order, pursuant to CPL §§ 200.20(2)(b),
and 200.20(4), consolidating docket number 2014BX018483 and indictment number
2487/2014 for trial is denied without prejudice.
Docket
No.: 2014BX018483
/i>
By misdemeanor complaint filed under Docket No.: 2014BX018483, defendant
Destiny Ramos is charged with Assault in the Third Degree (PL §120.00[1]),
Menacing (PL §120.15), and Harassment in the Second Degree (PL §
240.26[1]).
The complaint, sworn to by Crystal Blanco, the complaining witness, alleges that
on or about April 5, 2014 at approximately 3:00 a.m., at 810 East 152nd Street, Apt. 312
in Bronx County, defendant Destiny Ramos grabbed her by the hair, scratched her about
the body, and struck her about the face seven times with a closed fist. In addition, the
aforementioned conduct caused Ms. Blanco to experience substantial pain, annoyance,
alarm, and fear for her public safety.
Indictment
No.: 2487/2014
/i>
According to the People, during the same incident as described in Docket No.:
2014BX018483, defendant Anthony Smith stuck Crystal Blanco with a chair and sprayed
household cleaner in her face causing her to experience substantial pain.
The People assert that although based upon different criminal transactions, these
offenses are of such a nature that either proof of the first offense would be material and
admissible as evidence in chief upon a trial of the second or proof of the second would
be material and admissible as evidence in chief upon trial of the first. The People further
argue that these actions should be consolidated because: 1) consolidation serves judicial
economy to try the defendants simultaneously; 2) it would be unduly burdensome on the
People to conduct separate trials; and [*2]3) the evidence
and witnesses to be presented at trial are similar as to each case.
This Court did not receive any papers in opposition from defendant
Destiny Ramos.
"[I]n all cases, a strong public policy favors joinder, because it expedites
the judicial process, reduces court congestion and avoids the necessity of recalling
witnesses." People v. Mahboubian, 74 NY2d 174, 38 (1989). The decision to
grant consolidation is committed to the sound discretion of the Court. Although the
Court is "afforded reasonable latitude in exercising discretion", the Court of Appeals
cautioned that "compromise of a defendant's fundamental right to a fair trial free of
undue prejudice as the quid pro quo for the mere expeditious disposition of
criminal cases will not be tolerated." People v. Lane, 56 NY2d 1, 8 (1982). "The
test, which is fact specific, requires the court to foretell whether granting of consolidation
will result in a situation that causes undue prejudice at trial. Id. at 7-8.
The People have erroneously moved pursuant to CPL § 200.20, which
relates to the joinder of separate charges against a single defendant. The guidelines for
determining whether two or more defendants can be joined for the purposes of trial are
set forth in CPL § 200.40 (made applicable to informations pursuant to CPL §
100.45).
CPL § 200.40(2) provides in pertinent part:
When two or more defendants are charged in separate indictments with an
offense or offenses but could have been so charged in a single indictment under
subdivision one above, the court may, upon application of the people, order that such
indictments be consolidated and the charges be heard in a single trial.
CPL § 200.40(1) provides that "[t]wo or more defendants may be jointly
charged in a single indictment" in the following instances: "all such defendants are
jointly charged with every offense alleged therein", "all of the offenses charged are based
upon a common scheme or plan", or "all of the offenses charged are based upon the same
criminal transaction as that term is defined in subdivision two of section 40.10." The
term "criminal transaction" is defined as:
conduct which establishes at least one offense, and which is comprised of
two or more or a group of acts either (a) so closely related and connected in point of time
and circumstance of commission as to constitute a single criminal incident, or (b) so
closely related in criminal purpose or objective as to constitute elements or integral parts
of a single criminal venture. CPL § 40.10(2).
Here, the People's motion is supported solely by a two-page affirmation from
Assistant District Attorney Gerard Donahue comprised wholly of conclusory assertions
and arguments. Notably, the People have failed to submit a copy of the indictment or the
grand jury testimony of Crystal Blanco, the complaining witness, in defendant Anthony
Smith's case. In his affirmation in support, ADA Donahue writes that "this affidavit is
made upon information and belief ." An attorney's affirmation that is not based on
personal knowledge has no probative value. Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455 (2d
Dept. 2006); Israelson v. Sidney Rubin, 20 AD2d 668 (2d Dept. 1964).
Consequently, the People have provided no proof to establish any of the factual
allegations or charges pertaining to defendant Anthony Smith's case. Moreover, the
misdemeanor complaint charging defendant Destiny Ramos does not allege that she was
acting in concert with defendant Anthony Smith. In fact, the misdemeanor complaint
[*3]makes no mention of Anthony Smith at all. In short,
there is nothing to connect defendants Destiny Ramos and Anthony Smith for the
purposes of a joint trial. Based upon the papers submitted, this Court cannot determine
whether the two defendants are joinable under CPL § 200.40(1).
In addition, the People have failed to submit an affidavit of service
indicating that the instant motion was served on defendant Anthony Smith [FN1]
. CPLR 2103(e) requires a movant to serve all motion papers on every party who has
appeared. In a motion to consolidate, where a defendant's right to a fair trial is at stake,
due process and fundamental fairness require the People to serve all defendants who will
be affected by joinder. This Court cannot grant the relief requested herein without
defendant Anthony Smith having an opportunity to be heard.
Accordingly, the People's motion for an order, pursuant to CPL §§
200.20(2) and 200.20(4), consolidating docket number 2014BX018483 and indictment
number 2487/2014 for trial is denied without prejudice.
This constitutes the decision of this Court.
Dated:June 4, 2015
Bronx, New York
_______________________________
Hon. Armando Montano
Footnotes
Footnote 1:Although there is no
affidavit of service related to defendant Destiny Ramos, it appears from a review of the
action sheet that the People served the instant motion upon defendant Destiny Ramos in
Court.